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Part 3-1—Special rules allowing entitlement to redress

Part 3-1 Special rules allowing entitlement to redress

Division 1 Simplified outline of this Part

57   Simplified outline of this Part

This Part deals with a number of special cases to provide exemptions to the general rules of entitlement to redress in Chapter 2 (particularly section 12). Under this Part, a person who would not be entitled to redress under the general rules may nevertheless be entitled to redress because of the application of the exemptions in this Part.

If a person makes an application for redress, but dies before accepting an offer of redress, the person (or the person’s estate) will not be entitled to redress. Division 2 deals with that case and allows for a redress payment to be paid to other persons in certain circumstances.

If abuse of a person occurred inside a non-participating State, the person would not be eligible (and therefore not entitled) to redress because the abuse is not within the scope of the scheme (see sections 13 and 14). However, if a Commonwealth institution or a participating Territory institution is primarily responsible for the abuse, the person may be entitled to redress. Division 3 deals with that case.

Division 2 Death of person before acceptance of redress offer

58   Person dies before determination is made on application for redress

             (1)  This section applies if:

                     (a)  a person makes an application for redress under section 19; and

                     (b)  the person dies before a determination on the application is made under section 29.

             (2)  The Operator must continue to deal with the application as if the person had not died.

             (3)  If the Operator approves the application under paragraph 29(2)(a), then the Operator must:

                     (a)  determine, under paragraph 29(2)(b), each participating institution that is responsible for the abuse; and

                     (b)  determine, under paragraph 29(2)(c):

                              (i)  the amount of the redress payment for the person; and

                             (ii)  the amount of each responsible institution’s share of the costs of the redress payment; and

                     (c)  if paragraph 29(2)(i) applies to a participating government institution and a defunct institution—determine, under that paragraph, that the participating government institution is the funder of last resort for the defunct institution.

             (4)  The redress payment for the person is payable in accordance with section 60.

             (5)  The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to the operation of this section.

59   Person dies before offer of redress is accepted, declined or withdrawn

             (1)  This section applies if:

                     (a)  a person makes an application for redress under section 19; and

                     (b)  the Operator makes a determination under section 29 approving the application; and

                     (c)  the Operator gives the person an offer of redress under section 39; and

                     (d)  the person dies before the offer is accepted, declined or withdrawn.

             (2)  The offer is taken to be withdrawn immediately after the person dies.

             (3)  If, before the person died:

                     (a)  the person had not made an application under section 73 for review of the determination; or

                     (b)  the person had made such an application but the review had been completed;

then the redress payment for the person is payable in accordance with section 60.

             (4)  If, before the person died:

                     (a)  the person had made an application under section 73 for review of the determination; and

                     (b)  the review had not been completed;

then:

                     (c)  the application for review continues as if the person had not died; and

                     (d)  if the review determination approves the person’s application for redress—the redress payment for the person specified in the review determination is payable in accordance with section 60.

             (5)  The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to the operation of this section.

60   Entitlement to redress payment

             (1)  This section applies if under subsection 58(4) or 59(3) or paragraph 59(4)(d) a redress payment for a deceased person is payable in accordance with this section.

             (2)  The Operator must:

                     (a)  determine who should be paid the redress payment; and

                     (b)  pay the redress payment to that person or those persons as soon as practicable.

             (3)  In determining who should be paid the redress payment, the Operator may consider the people who are entitled to the property of the deceased person under:

                     (a)  the deceased person’s will; and

                     (b)  the law relating to the disposition of the property of deceased persons.

             (4)  The Operator may pay the redress payment without requiring:

                     (a)  production of probate of the will of the deceased person; or

                     (b)  letters of administration of the estate of the deceased person.

             (5)  The rules may prescribe matters relating to the payment of redress payments under this section.

Division 3 Abuse for which a Commonwealth institution or participating Territory institution is responsible

61   Abuse occurring inside a non-participating State

             (1)  For the purposes of subsection 13(2), a person is eligible for redress under the scheme if:

                     (a)  the person would be eligible under subsection 13(1) apart from the fact that the person does not meet the condition in paragraph 13(1)(b) because the sexual abuse of the person occurred inside a non-participating State (disregarding subsection (2) of this section); and

                     (b)  a Commonwealth institution or a participating Territory institution is primarily responsible for the abuse of the person.

             (2)  For the purposes of subsection 14(2), if a person is eligible for redress under the scheme because of subsection (1) of this section, then the abuse of the person is within the scope of the scheme.